United States v. Eduardo Varela-Ramirez , 428 F. App'x 287 ( 2011 )

Case: 10-40210 Document: 00511501955 Page: 1 Date Filed: 06/08/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 8, 2011
No. 10-40210
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EDUARDO AZAEL VARELA-RAMIREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:09-CR-1477-1
Before DeMOSS, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Eduardo Azael Varela-Ramirez (Varela) appeals following his guilty-plea
conviction and sentence on one count of being illegally present in the United
States after removal. Varela contends that he does not have a previous
conviction that qualifies as a conviction of an “aggravated felony” under 8 U.S.C.
§ 1326(b)(2). Although he concedes that his 60-month sentence of imprisonment
does not exceed the applicable statutory maximum under 8 U.S.C. § 1326(b)(1),
Varela argues that the district court’s mistaken belief, based on the Presentence
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 10-40210 Document: 00511501955 Page: 2 Date Filed: 06/08/2011
No. 10-40210
Report (PSR), that the statutory maximum sentence was 20 years of
imprisonment may have influenced the selection of a sentence. He requests that
the matter be remanded for resentencing.
As the Government acknowledges, the PSR was in error in stating that
Varela faced a 20-year maximum sentence, the statutory maximum under
§ 1326(b)(2), on account of a previous Texas conviction for which he received a
sentence of deferred adjudication probation. See United States v. Mondragon-
Santiago, 564 F.3d 367, 368-69 (5th Cir. 2009). However, Varela’s failure to
object to the PSR on this ground results in plain error review. See United States
v. Medina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003). As he has not
demonstrated that the inaccuracy in the PSR affected his substantial rights,
Varela has not established plain error. See Puckett v. United States, 129 S. Ct.
1423, 1429 (2009).
Varela also argues that, on account of the stigma associated with the
determination that he committed an aggravated felony, a remand is required so
that the judgment and the PSR can be corrected to reflect that he was convicted
and sentenced under § 1326(b)(1). The district court’s judgment, however, was
not incorrect: it indicated that Varela had been convicted and sentenced under
“8 U.S.C. § 1326(a) and 1326(b).” Varela has not demonstrated that this court
should remand for a correction of a clerical error in the judgment; he likewise
has not shown that this court should reform the judgment. See F ED. R. C RIM. P.
36; Mondragon-Santiago, 564 F.3d at 369. Further, as stated above, Varela has
not demonstrated that his substantial rights were affected by any inaccuracy
in the PSR. See Puckett, 129 S. Ct. at 1429.
AFFIRMED.
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